LUPC Proposes New Rules Allowing Grid-Scale Solar Facilities

Responding to increasing interest in developing grid-scale solar farms in Maine’s unorganized territory, the Land Use Planning Commission (LUPC) today proposed a rulemaking to allow development of grid-scale solar energy generation facilities (defined as occupying an area of 1 or more acres with a nameplate capacity of more than 250 kilowatts) with a permit in the Commercial Industrial Development Subdistrict (D-CI). The proposal includes a set of criteria that help identify eligible locations for redistricting to D-CI for the purpose of developing a grid-scale solar energy generation facility.

Most small scale solar-related developments would continue to be addressed under LUPC’s existing standards for accessory structures (Chapter 10, Section 10.27,P). Grid-scale solar energy generation facilities, however, are currently limited to locations where commercial uses are allowed but that may not be suitable for a solar farm.

To rezone areas to D-CI for the purpose of developing a solar farm, applicants must meet statutory criteria for amendment of land use district boundaries. There are two general criteria (12 M.R.S. § 685-A(8-A)):

A land use district boundary may not be adopted or amended unless there is substantial evidence that:

a. The proposed land use district is consistent with the standards for district boundaries in effect at the time, the comprehensive land use plan [the CLUP] and the purpose, intent and provisions of [Chapter 206-A, governing planning, zoning, and development in LUPC territory]; and

b. The proposed land use district has no undue adverse impact on existing uses or resources or a new district designation is more appropriate for the protection and management of existing uses and resources within the affected area. 

The first criterion involves showing that the proposed location meets the adjacency principle (a policy guiding where new zones for development can be created, which is currently under LUPC review), i.e., the proposed location of development is within one road mile from existing compatible development. (2010 CLUP at 62). However, this restriction is unsuitable to proposed solar farms as it likely would severely limit their location, barring them from areas near essential existing transmission infrastructure.

To address this issue, the proposed rule includes five locational criteria that ensure that locations for grid-scale solar farms meet the objectives of the adjacency principle by establishing that the area to be rezoned is: 

  1. Separated from patterns of compact residential development and located away from village centers sufficient to allow for future residential growth near existing development centers;
  2. Accessible from a public road by a legal right of access that would allow construction, operation, maintenance, and decommissioning of the facility;
  3. Located within one mile of the proposed point of interconnection with the existing transmission grid and no other area suitable for the facility and closer to a point of interconnection is reasonably available to the petitioner, unless the petitioner demonstrates that redistricting an area no more than three miles from the point of interconnection would result in a project location that is compatible with current land uses and does not expand the pattern of development beyond already developed areas;
  4. Located a reasonable distance from emergency service providers to allow for adequate response in the event of an emergency; and
  5. Not located in an area with prime agricultural soils, unless there is no reasonable alternative location available to the petitioner.

Satisfaction of these five locational criteria earns the applicant a presumption that the area proposed to be rezoned for grid-scale solar is consistent with the portions of the CLUP related to the location of development, including the adjacency principle. Upon decommissioning, or should a project not be developed, under the proposed rule the underlying D-CI Subdistrict would revert to its former designation.

The deadline for public comment on the proposed rule is December 15, 2017, with rebuttal comments due December 22, 2017.

If you have any questions about this proposed rule, or would like assistance or input in drafting comments for submission, please contact Matt Manahan (207-791-1189) or Lisa Gilbreath (207-791-1397).